Wills Flashcards
(38 cards)
When is a Will valid in California?
If it’s valid under:
a) California Law;
b) The law of the state where the will was executed;
OR
c) The law of the state where the testator is domiciled at the time of his death.
What are the Will execution requirements?
1) A writing concerning the distribution of property;
2) Signed by the testator;
3) Witnessed by two disinterested persons;
4) The witnesses must sign during the testator’s
lifetime; AND
5) The witnesses MUST understand that they signed the
testator’s will.
What is a Holographic Will?
A will that is handwritten and signed by the testator, but NOT witnessed.
- It is valid if:
1) Signed by testator; AND
2) All material terms are in testator’s handwriting.
Under what circumstances does a lack of date for a Holographic Will affect its validity?
When:
a) There is an issue with testamentary capacity; OR
b) There is a possibility that two or more wills
should be probated that are inconsistent. (In this instance, the holographic will is
invalid in the extent of the inconsistency.)
Under the Doctrine of Integration, when is a document integrated into a Will?
If the testator:
1) Intended it to be part of the will; AND
2) The document was physically present (existed) at the time of the will’s execution.
*Integration may be proven by extrinsic evidence or witness testimony.
What is a Codicil?
An instrument made AFTER a will is executed that modifies, amends, or revokes portions of a will (a codicil MUST satisfy the same formalities as a will to be valid).
*Execution of a codicil republishes the will and cures any interested witness problems.
When is a Holographic Will or Codicil valid under California law?
If it is signed by the testator AND all material terms of the will are in the testator’s handwriting.
(Material terms include the name of the beneficiaries and the gifts they will receive)
When will a document/writing be Incorporated by Reference into a Will?
If it:
1) Was in existence at the time the will was executed;
2) Is sufficiently described in the will; AND
3) The testator intended to incorporate it into the will.
*To incorporate into the will, it must be signed by the testator AND describe the item and the recipients.
When is a Will revoked by physical act?
If the testator:
1) Intended to revoke the will; AND
2) The will is burned, torn, destroyed, or cancelled by
the testator.
*A will executed in duplicate, is ALSO revoked if ONE of the duplicates is revoked by physical act.
What property may a married person “gift” in their Will?
Only:
1) their share of the community property; and
2) any separate property they own (i.e. acquired
prior to marriage or inheritance).
How may a testator revoke a will?
By executing a subsequent valid will or codicil.
What is the Dependent Relevant Revocation Doctrine, and when does it apply?
It cancels a previous revocation that was made under a mistaken belief of law or fact by the testator.
The doctrine applies when the testator would not have revoked his original will but for the mistaken belief that another will would be valid.
Revival of Revoked Wills By Physical Act
vs. Subsequent Instrument
Physical Act: Will be revived if a testator shows intent for its revival.
Subsequent Instrument: Revived if the testator republishes the will by a subsequent will or codicil that complies with the will execution formalities.
How may a testator make a partial revocation of a will?
By lining through or crossing out a portion of it. However, they cannot increase a gift in a will by partial cancellation.
*Partial revocation of a holographic will is done through interlineation (writing between the lines).
How is an estate divided using
Per Capita by Representation Distribution?
It’s divided into as many equal shares as there are:
1) Surviving descendants in the generation nearest to the
decedent; AND
2) Deceased descendants in the same generation who left
surviving descendants (if any).
Each surviving descendant in the nearest generation is allocated one share. The remaining shares of each deceased member of that generation are divided in the same manner among the then living issue.
How is an estate divided using Per Stirpes Distribution?
The estate is divided equally among beneficiaries.
If the beneficiary predeceased the testator: Their share passes to any surviving descendants (divided equally among them), if no descendants then the share goes to the other beneficiaries equally
What is an Anti-Lapse Statute, and when does it apply?
A gift will NOT lapse (return to the residuary estate to be distributed under intestate succession rules) but instead pass to the deceased beneficiary’s issue.
Applies only if the deceased beneficiary:
1) Was related by blood to the testator;
2) Was survived by issue; AND
3) There is no contrary intent.
When does a specific gift fail by extinction? (Ademption)
If the testator DOES NOT own it at the time of death. Occurs if they make a specific gift, but the property is later destroyed or sold before their death (does not apply to general or demonstrative gifts).
*In CA, a specific gift is adeemed only if the testator intended the gift to fail.
What are the 4 exceptions when property will NOT be adeemed?
1) When stock is changed to another form of stock (i.e. merger);
2) When the executor sells the property;
3) When the testator receives condemnation
proceedings and there is no issue of traceability; and
4) If the specific gift is destroyed, the beneficiary is
entitled to unpaid insurance/recovery for injury to the property.
What is Abatement? What is the Abatement order?
The process of reducing gifts when assets are insufficient to cover debts, expenses, and gifts.
A testator’s property abates as follows:
1) Residuary gifts
2) General gifts
3) Specific gifts
What is a Residual Gift?
A gift of any property remaining after the distribution of the estate to the identified beneficiaries.
Specific Gift vs. General Gift vs. Demonstrative Gift
Specific Gift: One that is specifically identified (i.e. real or personal property).
General Gift: Nonspecific, and can be satisfied from any funds remaining in the testator’s estate.
Demonstrative Gift: A hybrid, and occurs when the testator makes a general gift, but also identifies a specific source that the gift should come from.
Are gifts to an Interested Witness valid?
Gifts to and interested witness (a beneficiary under the will) are presumed invalid.
*If an interested witness cannot overcome this presumption, he will only take his intestate share of the estate.
How do Adopted Children inherit from their parents?
They inherit as if they were natural born children.
